Justia Legal Ethics Opinion Summaries

Mark Shenefield filed a request for order (RFO) seeking joint legal and physical custody of the child he shared with Jennifer Shenefield. In his declaration, Mark quoted from and referenced the contents of a confidential, court-ordered psychological evaluation undertaken during Jennifer’s previous marital dissolution. Mark’s attorney Karolyn Kovtun filed the paperwork. Jennifer opposed Mark’s request and sought sanctions for violations of Family Code sections 3111(d) and 3025.5, for unwarranted disclosure of the confidential custody evaluation. The trial court ordered the sanctions issue be heard at trial. Jennifer’s trial brief detailed her arguments for why the court should impose sanctions on both Mark and Kovtun. Mark did not file a trial brief. Following trial, the court issued sanctions against Mark in the amount of $10,000 and Kovtun in the amount of $15,000. Kovtun challenged the sanctions, filing a motion under Code of Civil Procedure section 473(d). A different court heard Kovtun’s request to vacate the sanctions imposed against her and denied the request. On appeal, Kovtun argued the court improperly sanctioned her because: (1) attorneys could not be sanctioned under section 3111; (2) the notice she received did not comply with due process standards; (3) the court lacked personal jurisdiction over her; (4) the court failed to enforce the safe harbor provision of Code of Civil Procedure section 128.7; and (5) the court improperly admitted and relied on a transcript of a meeting between Kovtun, Mark, and Jennifer. The Court found Kovtun’s arguments meritless, and affirmed the sanctions. View "Shenefield v. Shenefield" on Justia Law

The parties’ son was born in November 2018. Mother initiated a claim for child support. Testing established father’s paternity. and a stipulated judgment entered. In February 2019, father requested protective orders under the Domestic Violence Prevention Act and sought sole custody, submitting evidence of mother’s repeated online cyberstalking and harassment. Criminal charges were filed against mother. Much of the harassing behavior involves the child. In March 2019, the court awarded father sole custody of the child. Proceedings on the domestic violence restraining order were stayed pending resolution of felony charges against mother. In August 2020, the court denied mother’s request to modify custody and continued her supervised visitation.In connection with requests for modification of the custody and visitation orders, mother requested attorney fees. Following a hearing, the court denied mother’s request for fees, noting that father had not exhibited any conduct to warrant a sanction-based award. Other statutes apply only to married parties and were inapplicable; there has been no finding that father made false allegations of child abuse. Mother is not the prevailing party in an action to enforce an out-of-state custody order. The court of appeal reversed in part. Mother may be entitled to attorney fees under Family Code 7605, which requires a court to “ensure that each party has access to legal representation to preserve each party’s rights,” using the appropriate needs-based criteria. View "C.T. v. K.W." on Justia Law

The appointment of a guardian ad litem for a parent in a dependency proceeding radically changes the parent's role, transferring direction and control of the litigation from the parent to the guardian ad litem. While necessary to protect the rights of an incompetent parent—an individual incapable of understanding the nature and purpose of the proceeding or unable to assist counsel in a rational manner—appointment of a guardian ad litem is not a tool to restrain a problematic parent, even one who unreasonably interferes with the orderly proceedings of the court or who persistently acts against her own interests or those of her child.The Court of Appeal reversed the order appointing a guardian ad litem for mother, concluding that the appointment of a guardian ad litem for mother is not supported by substantial evidence and was not harmless. In this case, mother's clashes with counsel were not the result of any mental health disorder but were deliberate and strategic, designed to frustrate and delay proceedings she believed were going to be unfavorable to her. The court noted that, while mother is unquestionably a difficult party, a guardian ad litem cannot be appointed without any finding of her incompetence. View "In re Samuel A." on Justia Law

Plaintiff and her late husband, Grant Tinker, signed a premarital agreement (PMA) that in relevant part governed the ownership and testamentary disposition of their marital home. Respondents, Larry Ginsberg and his law firm, represented plaintiff in connection with the PMA and approved the PMA as to form on her behalf. Non-attorney Sidney Tessler, Tinker's longtime accountant and business manager, negotiated terms and approved the PMA as to form on Tinker's behalf. Plaintiff, the estate, and Tinker's children subsequently litigated plaintiff's and the children's claims, which were ultimately resolved in a global settlement.Plaintiff then filed suit against Ginsberg for legal malpractice in connection with the preparation and execution of the PMA, alleging that the PMA was unenforceable due to Ginsberg’s failure to ensure that Tinker signed a waiver of legal representation. The trial court granted Ginsberg's motion for summary judgment on the ground that Tinker ratified the PMA.The Court of Appeal reversed, concluding that there is a triable issue of material fact as to the threshold issue of whether Tinker satisfied the requirements of Family Code section 1615 when he executed the PMA. The court explained that, if the factfinder determines that Tinker did not comply with section 1615, and the PMA was therefore not enforceable, the question becomes whether Tinker's subsequent amendments to his estate plan could ratify the PMA and thereby rectify the statutory violation. The court concluded that the trial court erred by concluding that they could and did. The court held that a premarital agreement that is not enforceable under section 1615 is void, not voidable, and accordingly cannot be ratified. Because none of the other grounds asserted in the summary judgment motion support the trial court's ruling, the court reversed and remanded for further proceedings on plaintiff's malpractice claim. The court denied plaintiff's request for judicial notice as moot. View "Knapp v. Ginsberg" on Justia Law

Judge John W. Ouderkirk (Ret.) was the privately compensated temporary judge selected by petitioner, Angelina Jolie, and real party in interest, William Bradley Pitt, to hear their family law case. Jolie filed a statement of disqualification challenging Judge Ouderkirk based on his failure to disclose, as required by the California Code of Judicial Ethics, several matters involving Pitt's counsel in which Judge Ouderkirk had been retained to serve as a temporary judge. After the superior court ruled against Jolie, she petitioned for writ of mandate and supporting papers.The Court of Appeal granted the writ of mandate directing the superior court to vacate its order denying Jolie's statement of disqualification and to make a new order disqualifying Judge Ouderkirk. The court concluded that Judge Ouderkirk's ethical breach, considered together with the information disclosed concerning his recent professional relationships with Pitt's counsel, might cause an objective person, aware of all the facts, reasonably to entertain a doubt as to the judge's ability to be impartial. Therefore, the court concluded that disqualification is required. View "Jolie v. Superior Court of Los Angeles County" on Justia Law

Diana initiated divorce proceedings from Gregory in 2007. A final judgment dissolving the marriage and allocating marital property was entered in 2009 and was affirmed in 2012. Both parties filed post-decree petitions. Diana appealed a series of orders, arguing as a threshold issue that the court erred in denying her motion for substitution of judge as of right. The appellate court (Crecos II) agreed that the trial court erred in denying Diana’s motion and that subsequent orders were “void.” In 2016, Diana filed petitions under 750 ILCS 5/508(a)(3) for attorney fees and costs incurred in both appeals. In 2018, the trial court ordered Gregory to pay Diana’s attorney fees: $32,952.50 for the Crecos I appeal and $89,465.50 for the Crecos II appeal.The appellate court found that the 2018 order was not final and appealable; the order awarded interim attorney fees under section 501(c-1), which are temporary in nature and subject to adjustment and inextricably intertwined with the property issues that remained partially unresolved. The claim for attorney fees was not a separable claim for purposes of appeal.The Illinois Supreme Court reversed. The 2018 fee award was a final order on a post-dissolution petition. In entering the order, the trial court included Rule 304(a) language. The appellate court had jurisdiction over Gregory’s appeal of that order. View "In re Marriage of Crecos" on Justia Law

In 2012, Wendy was sentenced to two years’ imprisonment and arranged for her boyfriend, Mirenda, to care for her six-year-old daughter, Br. Br. came to the attention of DCFS in 2013 based on pending allegations that Mirenda sexually abused a previous partner’s daughters. The court conducted a hearing. Wendy and Assistant State’s Attorney Filipiak were present. Assistant Public Defender Bembnister was appointed as counsel for Wendy, and Assistant Public Defender Drell was appointed as guardian ad litem (GAL) for Br. Proceedings concerning Br. continued for several years.At a 2018 status hearing, Wendy appeared with a new, privately retained attorney, Drell. Drell’s appearance as Br.’s GAL at three hearings on the 2013 neglect petition before the same judge was not mentioned. In 2019, Drell withdrew and the public defender represented Wendy. The trial court terminated Wendy’s parental rights. The appellate court reversed, holding that a per se conflict existed because Drell served as Br.’s GAL before she served as Wendy’s attorney. Wendy had not raised the conflict-of-interest issue.The Illinois Supreme Court reversed. A “ ‘realistic appraisal’ ” of Drell’s professional relationship with Br. indicates that Drell was not associated with the victim for purposes of the per se conflict rule when she acted as Br.’s GAL. An allegedly neglected minor is not a victim but “the subject of the proceeding” under the Juvenile Court Act; such proceedings are not adversarial. Drell was never associated with the prosecution. Drell acted at the behest of the court, not the state. View "In re Br. M. & Bo. M." on Justia Law

In this appeal by allowance, the Pennsylvania Supreme Court considered whether, under the Pennsylvania Adoption Act, an attorney could act as both guardian ad litem and legal counsel for a minor child, in the context of a petition for termination of parental rights, where counsel did not expressly inquire into the child’s preferred outcome of the termination proceedings. In these unique circumstances, the Court found the attorney was able to fulfill her professional duties and act in both roles. Thus, the Court affirmed the Superior Court order, which affirmed the termination of parental rights in this case. View "In Re: P.G.F." on Justia Law

Linda Battise was the mother of Joseph Aucoin, deceased. Joseph and Sheila Aucoin were married and had two daughters. After Joseph’s death, Sheila began restricting Linda’s visitation with the children because Linda was not abiding by Sheila’s parental decisions. Through counsel, Linda petitioned for grandparent visitation. The chancellor encouraged the parties to confer because Sheila made some statements showing that they could come to a visitation agreement without court involvement. Linda and Sheila reached an agreement; however, the chancellor declined to sign the agreed order. The chancellor advised Sheila to retain an attorney because she did not believe that Sheila fully understood the implications of the agreement. Furthermore, the chancellor told Sheila that she was entitled to attorney’s fees. Shiela hired an attorney, and filed a motion to dismiss or stay proceedings until fees were paid in advance. The chancellor denied Linda’s motion to recuse, and ordered Linda to pay $3,500 to Sheila for attorney’s fees within thirty days or else she could not proceed with her case. Linda appealed, arguing that: (1) the chancellor erred by requiring her to prepay attorney’s fees to Sheila before Linda’s case could be heard; (2) the chancellor erred by not entering a final judgment; and (3) the chancellor erred by not recusing. After review, the Mississippi Supreme Court affirmed the chancellor's denial of the motion to recuse. The Court reversed the prepayment order, and remanded for further proceedings on the merits. View "Battise v. Aucoin" on Justia Law

Holly Cook appealed an administrative order entered by an Administrative District Judge (“ADJ”) declaring her to be a vexatious litigant pursuant to Idaho Court Administrative Rule 59. The order prohibited Cook from filing any new litigation pro se in Idaho without first obtaining leave of the court where the litigation was proposed to be filed. Ms. Cook petitioned for a divorce from her husband (“Mr. Cook”) in 2015. During the lengthy and contentious divorce proceedings, Ms. Cook had assistance of counsel for portions of the proceedings, but represented herself pro se when she did not. Some aspects of the divorce proceedings were appealed to the district court. Mr. Cook filed a moved that Ms. Cook declared a vexatious litigant. Neither party requested a hearing on Mr. Cook’s motion. The district judge presiding over the appeal referred the matter to the ADJ. The ADJ found that Ms. Cook largely failed to appear at dates set in scheduling orders that she (with and without counsel) agreed to. She failed at obtaining continuances, at having the trial judge disqualified, and to move the court for reconsideration of many intermediate decisions. She attempted to collaterally attack the default judgment of divorce, and at some point, was held in contempt for failing to respond to court orders during the divorce proceedings. Separate from the divorce proceedings, the ADJ noted Ms. Cook had filed nine pro se civil protection orders, all of which had been dismissed in favor of the parties from whom she sought protection. The Idaho Supreme Court determined the ADJ abused its discretion in declaring Ms. Cook a vexatious litigant; the ADJ did not review the merits and reason for dismissal in the nine civil protection actions, causing the ADJ to conclude incorrectly the final determinations were adverse to her. Furthermore, with respect to the divorce proceedings, the Court determined the ADJ abused its discretion by failing to make factual findings that Ms. Cook repeatedly attempted to relitigate issues already finally decided by the magistrate court. The Supreme Court concluded the ADJ did not make sufficient findings to support the conclusion that Ms. Cook’s filings were frivolous, unmeritorious, or filed with the intent to cause unnecessary delay. Accordingly, the Court reversed the prefiling order and remanded to allow the ADJ the opportunity to reconsider this matter. View "Cook v. Wiebe" on Justia Law